Chism v. White Oak Feed Co., Inc., 11531

CourtCourt of Appeal of Missouri (US)
Citation612 S.W.2d 873
Docket NumberNo. 11531,11531
PartiesRalph CHISM and Sylvon Chism, his wife, Plaintiffs-Respondents, v. WHITE OAK FEED COMPANY, INC., a corporation, Defendant-Appellant, and A. L. Luther, Jr., Defendant.
Decision Date20 February 1981

John M. Beaton, Welman, Seabaugh, Beaton & Williams, Kennett, for defendant-appellant.

John Hall Dalton, Harold B. Treasure, J. Michael Mowrer, Dalton, Treasure & Mowrer, Kennett, for plaintiffs-respondents.

MAUS, Chief Judge.

The left leg of plaintiff-respondent Ralph Chism (herein called plaintiff) was amputated four to five inches above the knee as a result of injuries received when the leg became entangled in an unguarded grain auger in the bottom of an open hopper. He recovered a verdict against White Oak Feed Company, Inc. (herein called White Oak), the possessor of the grain handling and storage premises where the casualty occurred, in the amount of $250,000. His wife had a verdict in the amount of $25,000 for loss of consortium. The claims were submitted to the jury against White Oak and codefendant Luther under instructions patterned upon MAI2d Instructions 22.03 and 19.01. Liability of White Oak was predicated upon findings that: as a result of an unguarded auger the grain facility was not reasonably safe; the plaintiff did not know and by using ordinary care could not have known of this condition; and White Oak knew or by using ordinary care could have known of this condition; and White Oak failed to use ordinary care to barricade it. The claims were submitted against Luther under similar instructions except the jury was also required to find that Luther knew, or in the exercise of ordinary care should have known, that the plaintiff did not know and by using ordinary care could not have discovered that such condition was not reasonably safe. The jury absolved Luther.

On appeal White Oak presents four points of alleged error. Only those points may be considered on appeal. Skelton v. General Candy Co., 539 S.W.2d 605 (Mo.App.1976). In this court's consideration of those points the evidence must be viewed favorably to the plaintiffs with all reasonable inferences to be drawn therefrom. Penberthy v. Penberthy, 505 S.W.2d 122 (Mo.App.1973). The evidence will be accordingly recast, evidence favorable to White Oak being noted only where necessary for a consideration of the issues.

The grain handling and storage facility was located on the farm of Luther. It was normally used by him in his individual farming activities. However, in the fall of 1978 White Oak obtained permission of Luther, as an uncompensated and friendly gesture, to use the facility in White Oak's commercial operations. In 1978 plaintiff grew seed soybeans under a contract with and for White Oak. Upon harvesting those seed soybeans, the plaintiff was directed by White Oak to deliver the soybeans to the Luther facility.

The Luther facility was a metal building 40 feet north and south by 14 feet east and west. There were large cylindrical metal grain storage bins located on the outside of and at each corner of the metal building. The metal building was open at the north and south ends and was designed for vehicles to be driven into the building and dump grain into a trough extending east and west across the floor of the building. This trough was located approximately 14 feet from the north end of the building. The trough was approximately 4 feet wide north and south. The center 10 feet of that trough was covered by ten pipes 27/8 inches in diameter extending east and west lengthwise of the trough. These pipes were spread apart in distances varying from 13/4 to 23/4 inches and were not precisely parallel to the sides of the trough. As the pipes were placed they formed a pipe grate over the center 10 feet of the trough. The pipe grate terminated approximately 2 feet from each wall of the building. At each end of the pipe grate there was located a grain pit or hopper.

At the bottom of the trough a grain auger extended across the building. This auger had a screw blade and when rotated, it conveyed grain through the trough to the hopper on the west side of the building. On the east side, the auger terminated after extending into the bottom of the hopper approximately 1 foot. Details concerning the extension of the auger into the hopper on the west side are not shown in the evidence.

The open area on the east side of the building was approximately 4 feet north and south by 2 feet east and west. Plates extended down from each side of the top of the open area to the level of the top of the grain auger, forming a hopper. These plates tapered toward the center of the bottom of the hopper so that the opening over the auger was 91/4 inches north and south by 141/2 inches east and west. In effect the hopper was a pit 2 feet by 4 feet at the top and 141/2 inches by 91/4 inches at the bottom. The bottom was open and immediately beneath it was an exposed portion of the auger. On each side, bin augers entered the building and terminated over each hopper so they could be used to carry grain to and from the hoppers. The bin augers when not in use terminated approximately in the center of the hopper and at some appreciable distance above the top of the hopper. On the west side of the building, a metal shield was placed at the west end of the pipe grate between the pipe grate and the hopper. This shield was approximately 1 foot in width and was vertical except it angled slightly toward the side of the building. A pillar supporting the facility on the exterior of the building extended into the west hopper. The open areas on either side of the pillar were covered with an expanded metal grate.

On the east side of the building there was no vertical metal shield between the pipe grate and the hopper. There was no pillar extending into the hopper on the east side of the building. The entire top of the hopper on the east side was open.

As the grain auger extended across the building, it was covered by an inverted v-shaped metal shield placed in such a manner that grain could pass underneath each side of the shield and between the tapered wall of the trough to reach the auger. However, this metal shield did not extend over the auger in the bottom of the hopper on the east side. As admitted by White Oak witness Owens, who designed and constructed the facility, the 141/2 by 91/4 inch opening at the bottom of the hopper on the east side was the only place in the facility that an auger was unguarded. The plaintiff presented evidence of five methods by which this portion of the auger could have been guarded, including the extension of the inverted metal shield over the auger at a cost of approximately $40.00. Plaintiffs' expert had observed seven commercial grain handling facilities in the community with no unguarded augers. White Oak presented evidence of various reasons why the suggested guarding of the auger would to some extent interfere with the operation of the facility and evidence that at least some farm grain handling facilities had unguarded augers.

By October 16, 1978, the plaintiff delivered two loads of soybeans to the facility in a grain buggy pulled by a pickup truck. The pickup truck was approximately 2 feet wider than the grain buggy which was estimated to be 5 or 6 feet wide. The soybeans were unloaded by stopping the grain buggy over the pipe grate and opening a gate on the east side of the grain buggy permitting the grain to fall into the pipe grate. On each occasion he was accompanied by the manager of White Oak who operated the machinery and attended to the unloading. On each occasion plaintiff got out of his pickup and moved about in the facility, although he was unable to detail his movements. On at least one occasion he stood behind or to the north of the grain buggy as it was unloaded. On October 17, 1978, the plaintiff delivered one load of soybeans in the same manner.

Later in the day, on October 17, 1978, the plaintiff delivered a fourth load of soybeans to the facility. This load was delivered in a "10-wheeler" truck with a bed that raised, owned by White Oak. The bed of this truck was approximately 8 feet wide. The truck was driven by the plaintiff and he was again accompanied by the manager of White Oak. The truck was driven in the north end of the building and stopped with the rear of the bed over the pipe grate. This meant that the open hopper was on the driver's side of the truck. After the truck was parked, the manager opened a gate in the rear of the bed to permit beans to fall into the pipe grate. At this time the plaintiff was standing to the rear of the truck, on the north side of the pipe grate. He could not recall the route by which he got there nor whether he was standing to the right or the left side of the rear of the truck. The manager was also standing to the rear of the truck. In a few minutes the beans stopped falling through the gate. The manager said he was going to raise the bed of the truck. The manager then walked forward, along the east side of the truck, between the truck and the open hopper and got in the cab. The plaintiff was unable to recall what he did. The plaintiff speculated that he might have intended to give the manager a signal. After seeing the manager walk forward, the plaintiff's next recollection is having his left leg entangled in the auger in the bottom of the open hopper. He could not recall how his leg got into the hopper and into the auger. Before the manager had started the truck, he heard the plaintiff yelling and he got out, stopped the machinery and took the plaintiff to the hospital.

Of course, there was conflicting testimony concerning the visibility of the open end of the unguarded auger. White Oak presented evidence that the open hopper was plainly visible upon entering the building, that it was open and obvious. White Oak also presented evidence that when a person was standing adjacent to the...

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